Democracy of Sound (43 page)

By exploiting the productive capacities of new media, pirates and bootleggers threatened to swamp the market with more music, lowering prices and lessening the incentive for labels to sign the stars and hype the hits. The perennial business model of the music industry—scoring one hit for every nine flops—depended on heavily promoting the popular artist to the public, by means both legal (advertising) and illegal (payola). In 1971, the industry seriously worried that the practice of spending over $500,000 to record and market an album could not survive in the face of widespread unauthorized reproduction by consumers and pirate competitors.
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Record labels and pirates presented two very different ways of making and distributing music, and scholars have attempted to describe this difference in terms of a broader change in economic production since the 1970s. The twentieth-century recording industry was a perfect example of a Fordist mode of production that relied on economies of scale to provide a standardized product to a mass audience. Advertising was key to creating the celebrity performer with the giant following and platinum record sales. In contrast, piracy exemplifies the new forms of production that emerged in the late twentieth century, organized around small batches of goods that were often customized to fit demand. Toyota, for instance, introduced its just-in-time system that eschewed mass-producing parts ahead of time in favor of a leaner, faster system that only produced goods as they were needed.
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File-sharing networks function in much the same way—particular, customizable, and flexible, affording greater choice and diversity than is available on the established market for music. Research by Big Champagne, a company that monitors online file sharing, shows that most users have only a few songs by each artist on their computers, but the range of artists runs the gamut from old to new, from Led Zeppelin to Lil Wayne and TI to Tim McGraw. Some users have dozens or hundreds of songs by a particular artist, while dabbling in the catalogs of numerous musicians who would rarely be heard on the same radio station or found on the same store shelves. The US Government Accountability Office estimated in 2010 that only one in five illegal downloads actually substituted for a potential record sale, which suggests that as many as 80 percent of
downloads involved music that users would not otherwise purchase. The system suits both the casual listener, with a broad but shallow interest in many artists, as well as the “completist” who seeks every single work by a particular artist.
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Piracy actually anticipated these innovations in production and distribution. Bootlegging in the 1930s and 1940s demonstrated some of the qualities that theorists later attributed to the post-Fordist economy, yet these practices occurred in the heyday of mass media and standardized factory production. Enterprises like the Hot Record Society and Jolly Roger offered consumers more-specialized products, produced in smaller runs than RCA-Victor, a large, vertically integrated firm considered profitable in the 1950s. In this sense, bootlegging prefigured the “Long Tail” concept that former
Wired
editor-in-chief Chris Anderson introduced in 2004. Anderson pointed out how online retailers Amazon and iTunes could afford to make books and music available that would appeal to only a very small number of consumers; whereas traditional stores maximized profit by allocating scarce inventory and shelf space to the biggest selling goods, the lower costs of stocking and distribution enjoyed by iTunes permitted its parent corporation, Apple, to reap additional income by catering to a wide array of small niche interests. Each additional audio file hosted or sold on iTunes poses little marginal cost to the company.
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These new business models are only new in the sense that the established music industry has begun only recently—and reluctantly—to embrace them. Businesses such as iTunes provide a greater variety of choices than a Target or Tower Records could manage to stock on their shelves by exploiting economies of scope, answering the complaints long voiced by collectors and other enthusiasts that record labels and retailers saw little to be gained by providing the obscure music that they desired. For much of the twentieth century, piracy fulfilled this demand, making up for the inadequacies of the legitimate market. Similarly, pirates made music and other goods available in the developing world to consumers who otherwise could not obtain them. In both instances, piracy filled in the cracks between official supply and real demand.

The Politics of Information

The record industry has, of course, more often attempted to squelch this demand rather than cater to it. It won political support for punitive antipiracy measures by arguing that government had to protect sectors such as music and film in the interest of promoting economic growth, at a time when manufacturing was beginning to decline in the United States. Judith Stein and other scholars have examined the political ascendance of post-industrial interests in the 1970s and 1980s, documenting how policy makers embraced tax reforms, deregulation,
and other programs that benefited industries in the FIRE (finance, insurance, and real estate) sector. The rise of an important political coalition behind intellectual property rights was but one part of this ideological and rhetorical shift toward an “information society” that favored certain kinds of businesses to the diminution of manufacturing.
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The idea of an information revolution first appeared in the early 1960s, soon after journalists and scholars began to speculate about a post-industrial society. Promoted by Madison Avenue, the revolution was eventually embraced by academics, policy makers, and technology giants such as IBM. The future of the American economy did not lie in heavy industry and mass production, but, rather, in automation, computers, and the production of information—the copyrights, patents, and other forms of knowledge that made it all possible. While some optimists looked forward to a day when automation allowed Americans to create more with less labor, and thus enjoy greater leisure, the central premise of information politics was the greater importance of information over labor, manufacturing, or any other concerns. This assumption—widely accepted yet rarely questioned—has become an article of faith among academic theorists, as in Manuel Castells’s influential formula of the information society as “a specific form of social organization in which information generation, processing, and transmission become the fundamental sources of productivity and power.” In an oft-cited 1977 study, economist Marc Uri Porat estimated that 53 percent of Americans already worked in information jobs (according, of course, to his own categorization). If one accepts the premise that information is the key to the entire economy and that a majority of workers’ jobs depend on it, then taking measures to protect information or intellectual property makes plain sense.
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Only in the 1960s, though, did lawmakers and jurists at every level begin to view the economic imperative of protecting investments made by record labels and other entertainment companies as paramount. A few politicians, such as Rep. Abner Mikva (D-IL) and Sen. Philip Hart (D-MI), questioned whether stronger copyright would actually favor consumers, but skepticism about copyright was much scarcer in the 1970s than before. The change in attitudes occurred as rock music, magnetic tape, and the counterculture set off the bootleg boom of the late 1960s. It was also the result of a subtle shift in the understanding of property rights that had evolved during the long period when sound recordings were not protected by copyright, as jurists sought an alternative rationale for protecting records that focused on the value companies had already invested in producing and popularizing records. The argument for protecting recordings depended on the investment of time, labor, and money into the product itself, not on the concept of a limited incentive that had traditionally shaped copyright. It committed the state to preserving what later generations would call “brand value.”
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Representatives of a so-called copyright industry pitched stronger property rights as a vital tool for economic development. Movie studios and record labels, in particular, have routinely pressed Congress for stricter protection of their goods. For example, in 1982 Congress considered a bill to stiffen the penalties against piracy of music and movies. The deliberations over copyright infringement occurred against the backdrop of a wrenching recession in 1982, when jobs involving services and information technology were among the only sectors showing signs of growth.
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Copyright interests positioned their own businesses as vital to the nation’s economic well-being. Disney’s Peter F. Nolan argued to Congressman Barney Frank (D-MA) that his company depended on a long-term return on its investment in animated films, which it re-released for new audiences of children every few years. Piracy threatened this business strategy. “You can see that a lot of jobs and a lot of investment capital are riding on your bill,” he concluded.
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Politicians increasingly linked strong enforcement of intellectual property rights to the economic health of an emergent information economy, and in the 1990s Bill Clinton made growing “information-based jobs” a key priority of his administration.
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The ascendance of intellectual property coincided, ironically, with the success of politicians like Clinton and Ronald Reagan, who decried “Big Government,” as well as a substantial expansion of government intrusion into the lives of Americans. This twist in American political culture reflects the strange heritage of the 1960s—a continued tension between the emerging New Right, with its focus on the economic prerogatives of business, and the anarchistic, hedonistic idea of liberation that germinated in the era’s counterculture, of which piracy was one exuberant part. The rhetoric of the “free-market” imagined freedom as low taxes and deregulation, while a distinct subculture flourished in Silicon Valley that emphasized liberation through technology, championed by boomer activists such as Richard Stallman and John Perry Barlow, the former Grateful Dead lyricist who helped popularize the slogan “Information wants to be free.” Although the conservative freedom agenda has experienced greater legislative success, the free-information movement has found expression through influential outlets like
Wired
magazine and political vehicles such as the Electronic Frontier Foundation (EFF).
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In fact, the conservative economic program—known to scholars as “neoliberalism”—has been misunderstood by many of its critics as being fundamentally antistatist. Intellectual property law was only one dimension of an American state that increasingly intervened in citizen’s lives during the 1980s and 1990s. In theory, neoliberalism represents the small-government platform of Reagan, Thatcher, and Bush, politicians who espoused the greater virtue and efficiency of the private sector over the state. In practice, neoliberalism has become a catch-all category for all things opposed by the Left, even as “neoliberal” leaders
pursue a jumble of policies seemingly unrelated by a central theme; consider, for example, the administration of President George W. Bush, which endorsed “small-government” policies like tax cuts and privatization while expanding military spending, government surveillance, and federal intervention in education. Neoliberalism often represents “a further blurring of the line between the state and the economy rather than a rolling back of the public sector,” journalist Daniel Ben-Ami observed in 2011. “Indeed, in some respects it involves an extension of state involvement in businesses.”
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Ben-Ami is right not to take rhetoric of small government and free markets at face value. Far from ushering in the death of the state, the neoliberalism of the late twentieth and early twenty-first century pruned the functions of government in some ways, such as social welfare, but bolstered them in others—providing subsidies for favored taxpayers and businesses, protecting sectors such as finance and entertainment, and controlling the bodies of workers and consumers in newly invasive ways. Its policy prescription amounted to “state protection and public subsidy for the rich, market discipline for poor,” as Noam Chomsky observed in 1995. Lawmakers passed more stringent penalties for copyright infringement at the same time that laws regulating drugs and immigration became vastly more punitive. People who trafficked in certain goods and services could expect to face years in prison, thanks to mandatory minimum sentencing and other measures designed to “get tough” on crime. Congress considered one of the earliest mandatory minimum bills the same year it passed the seminal Copyright Act of 1976.
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Drug dealers and pirates, of course, were likely not the people politicians had in mind when they lauded small business. Indeed, poor communities and people of color have borne the brunt of the push for more aggressive law enforcement, yet few scholars have looked at the intensification of intellectual property law as part of the same repressive zeitgeist.
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One need look no further than the case of Ousame Zongo, an immigrant from Burkina Faso who in 2003 was shot dead in New York after being wrongly suspected of hiding pirate CDs in a Chelsea storage locker, for confirmation of how real the regime of copyright enforcement has become.
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Zongo’s murder was remarkable, even atypical of the war on piracy—more the result of racism and a culture of police violence than of overzealous copyright enforcement, perhaps. Yet it speaks to the tragic futility of a debate that has raged from the days of piano rolls and wax cylinders to global struggles over trade, the Internet, and intellectual property rights. Political action put the state squarely behind the protection of copyright by the 1970s, and law enforcement has labored to curb piracy without ever fully stopping it. Unauthorized reproduction continues—not just online or in Pakistan or Nigeria, but on the counter of an Atlanta gas station that sells clearly bootlegged copies of Nicki Minaj CDs
for $3.99 a piece, in full view of the police officers who frequent the store. When a friend tells me about some new music she has, she says I can “steal” it from her, meaning I can connect a USB drive to her laptop and transfer the files to my own computer. “Stealing” has taken on a humorous and altogether ordinary connotation in the context of music. Piracy is, of course, less amusing when a man senselessly loses his life in the quest to protect the record industry’s property rights and revenue.